The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-03-08

De Jure Robertson and De Facto Smith.
To the Editor of the Indianapolis Journaa
The News, in its Issue of March 5, concerning
the legislative deadlock, says:
We have held from the first that Mr. Robertson Is
legally entitled to the chair Of the Senate. The ques
ton is not of rights but of power That is the de
facto case. The officer usurper or pretender who
holds the position OF power Is the de facto officer and
and finally that the Republicans should accept this
condition, as they can't help it.
Certainly the News has very muddy idea ct
de facto officer When it admits that Me-.
Robertson is legally entitled to the chair of tho
Senate it at once admits away the whole founday
ton upon which the Democratic Senators stand.
For once admit de jure officer, aud the de facto
is excluded, and any one who exercises the func-
tions of the de jure officer after such an one is
ascertained becomes usurper
In Steinback State, 3S Ind. 4S3, it is said
by Buskirk, G. j.. speaking for the whole courE
When Fowler became officer de iure Steinback
ceased TO be officer de aco for where there is but
Office there cannot be two officers de iure. of
fcer dc jure and officer de facto, both in possess
sion of the Office at tho time If Fowler was
then officer de jure Steinback could not have
been officer de facto; for. we have where
there is butone Office there cannot be officer de
facto and officer de iure in possession of the Office
at the same time.
The News says:
The officer, usurper. or pretender who holds the
position of power is the de facto officer and in the
Senate it is Green Smith.
If the News possesses legal editor he GER
tainly did not write that sentence. De facto has.
in the law, certain meaning. and is not that
any person who gets into place by force or
power without any rightful authority, is tho
de facto incumbent There must be some color
of authority. In Plymouth Us. Painter III
Conn. 585; S. G. "A Am. Dec. Sal de facto, de
jure and usurper are thus defined:
An officer de facto is who exercises the duties Of
II
election to that Office. He differs on tho hand.
from mere uslrper of an ofics who undertakes to
act officer without any color Of right and. on
the other hand from officer de jure who is in all
respects legally appointed and qualified to exercise
the Office These distinctions very obvious and
have always been recognized.
Again, it is said in the same opinion:
The acts of usurper of an oifceowithout any
color of title undoubtedly wholly void both to
individuals and the public.
This language is approved by our Supreme
Court in Steinback vs. State, supra, and In
Caskey VS.. Greensburg IS Ind, 233.
Now how stands the case? In January the vote
for Lieutenant governor was in the hands OF the
Speaker of the House; it was counted by the
rightfu authority, before the proper assembly,
the result was duly declared in Mr.. Robertson's
favor; he took the oath OF Office, and from that
| moment was the de jure officer. See 3S Ind.
| 4SS. Prior to that Green Smith had been, by
| the present Senate, chosen President pro tenn.
| He was the de facto officer, but the moment
| Colonel Robertson was declared elected and took
| became
| and Green Smith ceased to be the de facto off,
Ger. Colonel Robertson was then restrained
| from exercising the functions of his Office. The
| injunction did not take away his de jure
sra but simply rssarsnsd him ha
| Office. When the injunction was dissolved,
| it conferred rights upon Colonel
| Robertson which he did not before possess, but
| simply admitted him to exercise the duties
| joined on him by law. The News says: 1--WE
| have held from the first that Mr. Robertson Is
| legally entitled to the chair of the Senate"
| Then, if he be, Green Smith is not, for no two
| persons can be legally entitled to that place at
| the same time. If Green Smith be not legally
entitled 10 the place, but holds it-not by right.
but by power, AS the News concedes-then he Is
a usurper, and the News is asking the Isegisla-
| ture to acknowledge usurper .ssan officer de-
facto. who must. before he can be such. have
some color of title The Same logic would say
| to the people that "whoever, because Of brute
| force, is able to seize the control of the State.
| you ought to submit to, because you can't help
| yourselves. You are not responsible for it. and
| ought to submit in the interest OF the people"
| That reduces the whole logic Of the News to alb
| surdity
| Where there is de jure officer there cannot
be &c facto officer. Colonel Robertson ia ad-
| mitted by the News TO be the de iure officer k
any person presides over tho Senate other than
the de iure officer he is a usurper, and that per-
son is Green Smith.
AS a matter of historical interest wish to
| mention the case of the Able of Fountains.
| IOund In the ear BOOKS 1t was tried IN tho
year l43l. The action debt on a bond given
| by one F., as the abbot of the convent Of
Fountaine. The action was brought against one
r. AS lis successor. The defendant pleaded
that the abbots of the order We're elective; that.
before the making of the bond, the abbacy wab
vacant. an election held, at which r. had
twenty four votes and +. but eight; that r. pro-
cured himself to be instituted and indicted By
the visiting ordinary, took possession Of the
convent, held the same wrongfuiy as agans
r.. and, while SO holding wrongfully, executed
the bond And further, that he was thereafter
displaced, and r., the duly elected abbot, duly
indicted into the Office The plaintiff claimed
that the plea was not a proper plea in bar, In
form substance, and declined to answer T.
Darlington, c. j., said:
In every case, if be made abbot or parson
enormously and then is removed for precontract
for any like matter. yet deed made by him and tho
covenant by the parson, and the patron, and the
ordinary. is good il abbacy church be vacant
and man who had no right pretended to be patron
and preferred A. by force whereof he is Installed
and then he is ousted by legal process, inasmuch
the patron had no legal right vet deed which was
legally full, and the patron prefer one who is nsti-
tuted by the ordinary, without deposing the other by
due process and the other makes reentrv and GUSTS
the other. III this the deed made by him who was
put in possession wrongfuly is void, because there
was always another parson that the second was
! only usurper.
| This ease only strengthens the doctrine that.
when it is once ascertainsd who is the rightful
claimant to an Office, then. from that time, all
the claims of another cease, his acts are unlaw-
full as to third parties and the public, and he be-
| com eS usurper. E. G. H
| DANyILLE, Ind, March T.